Dempster v. Lansingh

Per Curiam : It is contended by appellant that it was improper for the court to hear suggestions of damages until the cause was before the court on final hearing and until it was determined whether the relief sought should be granted. In support of this position Terry v. Hamilton Primary School, 72 Ill. 476, is-cited and relied ón. That case is not like the one at bar. There the sole object of the proceeding was to obtain a perpetual injunction, and a temporary injunction was granted to protect the interests of the parties until the cause could be heard on the bill and answer. Here the bill was for a different purpose, and the temporary injunction was merely ancillary to the main cause. In such a case the statute is plain that the court may hear suggestions of damages and allow the same before final hearing. Section 12 of chapter 69 of Hurd’s Statutes of 1905 provides, that “in all cases where an injunction is dissolved by any court of chancery in this State, the court, after dissolving such injunction, and before dually disposing of the suit, upon the party claiming damages by reason of such injunction, suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party damnified by such injunction, and may award execution to collect the same.” By the above provision the power of the court to award such damages is beyond question, and the time for hearing such question is entirely within the discretion of the chancellor, with the express limitation that it must be “after dissolving such injunction and before finally disposing of the suit.” The court committed no error in hearing suggestions of damages in this case. Darst v. Gale, 83 Ill. 136; Wing v. Dodge, 80 id. 564; Keith v. Henkleman, 173 id. 137. It is also insisted by appellant that the hearing on the suggestions of damages involved an intricate account and should have been referred to the master. We do not agree with appellant in this. The damages suggested included no injury to property rights and no- consequential damages other than mere items of expenses incurred in connection with the motion to dissolve the injunction. The items were several in number, it is true, but each was readily the subject of proof. Nothing of an intricate nature was embraced within the items and no reference to the master was necessary. , . After the court had -announced its decision that the injunction must be dissolved, and when the decree had been prepared in accordance with the decision of the court and presented for approval, counsel for appellant suggested to the court that appellee was left in a position that he might remove the stock out of the jurisdiction of the court, and that as he had little or no other property, if appellant should finally procure a decree against him he might have nothing in the jurisdiction of the court that could be' reached to satisfy the decree. Counsel for appellee replied that his client had no intention of removing his stock out of the State; that it was then in the possession of the Chicago Title and Trust Company and that appellee intended to let it remain there. The court thereupon suggested that if that was the case the parties might make a stipulation to that effect, which they voluntarily did. Appellant now contends that on account of that stipulation the stock was not released to appellee’s control by the dissolution of the injunction and that no damages should be assessed on account of such dissolution. This contention is without merit. The dissolution was not dependent upon the stipulation being made. Before the stipulation had been mentioned the court announced its decision dissolving the injunction, and the stipulation was made by the voluntary action of the parties and not by any order of the court. By the dissolution of the injunction the beneficial use of the stock was released to appellee, and the agreement to leave it where it then was, with the Chicago Title and Trust Company, was not entitled to be considered in the assessment of the damages. It is also contended that Mr. Pettibone, one of counsel for appellee, was a stockholder in the Rosehill Cemetery Company and was made a party to the suit, and being interested in the litigation was not entitled to fees on the basis of counsel who is not a party to the litigation. It is true Pettibone is the owner of a few shares of stock of the corporation, but he was not a party to the suit when he rendered the services for which it was asked fees be assessed as damages, and his stock was not affected by the injunction. By an amendment about a year after the dissolution of the injunction he was made a party defendant. That fact, however, should have no influence in determining the fees he was entitled to charge for his services as counsel for appellee in securing the dissolution of the injunction. The decree of the circuit court is supported by the law and the evidence in every respect except as to the amount allowed as solicitors’ fees'. In this respect we think the damages assessed excessive. The decree finds appellee’s counsel rendered bills for $8000 each and that appellee paid them that amount, and that this was a usual, customary and reasonable charge for such services by reputable attorneys practicing in Cook county. It further appears from the decree that because, in the opinion of the chancellor, the evidence taken before the master, or some of it, would be of value on' the final hearing of the case, he deducted $1200 from said sum of $16,000 and allowed $14,800 as solicitors’ fees. The law is, that where the injunction is ancillary to the principal relief sought, fees for defending the suit generally should not be assessed as damages upon the dissolution of the injunction. (Lambert v. Alcorn, 144 Ill. 313; Walker v. Pritchard, 135 id. 103.) The fact that appellee’s counsel had charged, and he had paid them, the amount claimed is not conclusive of his right to have that sum taxed as damages. In Jevne & Almini v. Osgood, 57 Ill. 340, the rule was stated as follows: “But a reasonable and fair compensation should be allowed to defendant for money actually paid to an attorney or a liability fairly and honestly incurred to pay an attorney to procure the dissolution,—such a fee, only, as he would pay if he had no hope of having it reimbursed.” While it is true the testimony offered by the appellee as to the value of the services rendered bj*- his solicitors supported the finding and decree of the chancellor and appellant offered no testimony on that subject, it is also true that the testimony does not distinguish as to the value of the services necessarily rendered in the dissolution of the injunction and the services rendered that were necessary for the general defense of the suit. The chancellor reduced the amount claimed by appellee because in his opinion some of the evidence taken and the services rendered were necessary to and would be availed of on the final hearing of the case on its merits, but our examination of this record leads us to conclude that the reduction made was insufficient. Bor the reason that the allowance of solicitors’ fees was excessive the decree of the circuit court is reversed and the cause remanded. Reversed cmd remanded.